EXHIBIT 10.12
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, DATED AS OF APRIL 25, 1997, BY AND AMONG UC
TELEVISION NETWORK CORP., A DELAWARE CORPORATION ("COMPANY"), AND U-C HOLDINGS,
L.L.C. (THE "PURCHASER").
W I T N E S S E T H:
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WHEREAS, Company and Purchaser have entered into that certain Purchase
Agreement, dated as of the date hereof (the "Purchase Agreement"), pursuant to
which Company has agreed to issue and sell to Purchaser, and Purchaser has
agreed to purchase from Company, an aggregate of 29,090,909 shares of Common
Stock, $0.001 par value per share ("Common Stock") and a Class C Warrant for
3,863,662 shares of Common Stock and certain purchase rights pursuant to the
Equity Protection Agreements; and
WHEREAS, in order to induce Purchaser to enter into the Purchase Agreement,
the Transaction Documents and to purchase such shares of Common Stock, the Class
C Warrant and certain purchase rights pursuant to the Equity Protection
Agreements, Company has agreed to provide registration rights with respect
thereto and to the shares of Common Stock of Company held by Purchaser;
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, it is agreed as follows:
1. Definitions. Unless otherwise defined herein, terms defined in the
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Purchase Agreement are used herein as therein defined, and the following shall
have (unless otherwise provided elsewhere in this Registration Rights Agreement)
the following respective meanings (such meanings being equally applicable to
both the singular and plural form of the terms defined):
"Agreement" shall mean this Registration Rights Agreement, including all
amendments, modifications and supplements and any exhibits or schedules to any
of the foregoing, and shall refer to the Agreement as the same may be in effect
at the time such reference becomes operative.
"Business Day" shall mean any day that is not a Saturday, a Sunday or a day
on which banks are required or permitted to be closed in the State of New York.
"Commission" shall mean the Securities and Exchange Commission or any other
federal agency then administering the Securities Act and other federal
securities laws.
"Conversion Shares" shall mean shares of Common Stock issued or issuable
upon exercise of the Class C Warrant.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
or any similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect from time to time.
"Holder" shall mean the holder of Conversion Shares or shares of Common
Stock held by Purchaser or their respective transferees.
"Majority Holders" shall mean Holders holding at the time, shares of
Conversion Shares or Common Stock representing more than 50% of all Registrable
Securities.
"NASD" shall mean the National Association of Securities Dealers, Inc., or
any successor corporation thereto.
"Registrable Securities" shall mean the shares of Common Stock held by
Purchaser or its transferees, or shares of Common Stock from time to time issued
or issuable to the holders of the Class C Warrant upon the exercise thereof or
to the holders of the purchase rights pursuant to the Equity Protection
Agreements, or hereafter acquired by Purchaser or which they hereafter obtain
the right to acquire. As to any particular Registrable Securities, such
securities shall cease to be Registrable Securities when they have been
distributed to the public pursuant to the an offering registered under the
Securities Act or sold to the public through a broker, dealer or market maker in
compliance with Rule 144 under the Securities Act (or similar rule then in
force) or repurchased by the Company or any Subsidiary. For purposes of this
Agreement, a Person shall be deemed to be a holder of Registrable Securities,
and the Registrable Securities shall be deemed to be in existence, whenever such
Person has the right to acquire directly or indirectly such Registrable
Securities (upon conversion or exercise in connection with a transfer of
securities or otherwise, but disregarding any restrictions or limitations upon
the exercise of such right), whether or not such acquisition has actually been
effected, and such Person shall be entitled to exercise the rights of a holder
of Registrable Securities hereunder.
"Securities Act" shall mean the Securities Act of 1933, as amended, or any
similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect from time to time.
2. Required Registration. After receipt of a written request from the
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Holders of Registrable Securities requesting that Company effect a registration
under the Securities Act covering at least 20% of the Registrable Securities
initially outstanding, and specifying the intended method or methods of
disposition thereof, Company shall promptly notify all Holders in writing of the
receipt of such request and each such Holder, in lieu of exercising its rights
under Section 3 may elect (by written notice sent to Company within 10 Business
Days from the date of such Holder's receipt of the aforementioned Company's
notice) to have Registrable Securities included in such registration thereof
pursuant to this Section 2, provided, however, that no Holder will deliver a
request for a demand registration during the six (6) month period following the
effective date of a Registration Statement filed in respect of a previous demand
registration. Thereupon Company shall, as expeditiously as is possible and at
its expense, use its best efforts to effect the registration under the
Securities Act of all shares of Registrable Securities which Company has been so
requested to register by such Holders for sale, all to the extent required to
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permit the disposition (in accordance with the intended method or methods
thereof, as aforesaid) of the Registrable Securities so registered; provided,
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however, that Company shall not be required to effect more than two (2)
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registrations of any Registrable Securities pursuant to this Section 2 for the
Purchaser, unless Company shall be eligible at any time to file a registration
statement on Form S-3 (or other comparable short form) under the Securities Act,
in which event there shall be no limit on the number of such registrations
pursuant to this Section 2. The rights of the Holders under this Section 2
shall be effective immediately after the date hereof. If the managing
underwriter shall determine that it cannot register all of the Registrable
Securities in any registration of Registrable Securities shall have priority
over any other securities requested to be included in such registration.
3. Incidental Registration. If Company at any time proposes to file
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on its behalf and/or on behalf of any of its security holders (the "Demanding
Security Holders") a Registration Statement under the Securities Act on any form
(other than a Registration Statement on Form S-4 or S-8 or any successor form
for securities to be offered in a transaction of the type referred to in Rule
145 under the Securities Act or to employees of Company pursuant to any employee
benefit plan, respectively) for the registration of securities, it will give
written notice to all Holders at least 30 days before the initial filing with
the Commission of such Registration Statement, which notice shall set forth the
intended method of disposition of the securities proposed to be registered by
Company. The notice shall offer to include in such filing the aggregate number
of shares of Registrable Securities as such Holders may request.Each Holder
desiring to have Registrable Securities registered under this Section 3 shall
advise Company in writing within 10 Business Days after the date of receipt of
such offer from Company, setting forth the amount of such Registrable Securities
for which registration is requested. Company shall thereupon include in such
filing the number of shares of Registrable Securities for which registration is
so requested, subject to the next sentence, and shall use its best efforts to
effect registration under the Securities Act of such shares. If the managing
underwriter of a proposed public offering shall advise Company in writing that,
in its opinion, the distribution of the Registrable Securities requested to be
included in the registration concurrently with the securities being registered
by Company, the other security holders of the Company or such Demanding Security
Holder would materially and adversely affect the distribution of such securities
by Company, the other security holders of the Company or such Demanding Security
Holder, then all selling security holders (including the Holder who initially
requested such registration) shall reduce the amount of securities each intended
to distribute through such offering on a pro rata basis. Except as otherwise
provided in Section 5, all expenses of such registration shall be borne by
Company.
4. Registration Procedures. If Company is required by the provisions
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of Section 2 or 3 to use its best efforts to effect the registration of any of
its securities under the Securities Act, Company will, as expeditiously as
possible:
(a) prepare and file with the Commission a Registration Statement with
respect to such securities and use its best efforts to cause such Registration
Statement to become and remain effective for a period of time required for the
disposition of such securities by the holders thereof, but not to exceed 180
days;
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(b) prepare and file with the Commission such amendments and
supplements to such Registration Statement and the prospectus used in connection
therewith as may be necessary to keep such Registration Statement effective and
to comply with the provisions of the Securities Act with respect to the sale or
other disposition of all securities covered by such Registration Statement until
the earlier of such time as all of such securities have been disposed of in a
public offering or the expiration of 180 days;
(c) furnish to such selling security holders such number of copies of
a summary prospectus or other prospectus, including a preliminary prospectus, in
conformity with the requirements of the Securities Act, and such other
documents, as such selling security holders may reasonably request;
(d) use its best efforts to register or qualify the securities covered
by such Registration Statement under such other securities or blue sky laws of
such jurisdictions within the United States and Puerto Rico as each holder of
such securities shall request (provided, however, that Company shall not be
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obligated to qualify as a foreign corporation to do business under the laws of
any jurisdiction in which it is not then qualified), and do such other
reasonable acts and things as may be required of it to enable such holder to
consummate the disposition in such jurisdiction of the securities covered by
such Registration Statement;
(e) furnish, at the request of any Holder requesting registration of
Registrable Securities pursuant to Section 2, on the date that such shares of
Registrable Securities are delivered to the underwriters for sale pursuant to
such registration or, if such Registrable Securities are not being sold through
underwriters, on the date that the Registration Statement with respect to such
shares of Registrable Securities becomes effective, (1) an opinion, dated such
date, of the independent counsel representing Company for the purposes of such
registration, addressed to the underwriters, if any, and if such Registrable
Securities are not being sold through underwriters, then to the Holders making
such request, in customary form and covering matters of the type customarily
covered in such legal opinions; and (2) a comfort letter dated such date, from
the independent certified public accountants of Company, addressed to the
underwriters, if any, and if such Registrable Securities are not being sold
through underwriters, then to the Holder making such request and, if such
accountants refuse to deliver such letter to such Holder, then to Company, in a
customary form and covering matters of the type customarily covered by such
comfort letters and as the underwriters or such Holder shall reasonably request.
Such opinion of counsel shall additionally cover such other legal matters with
respect to the registration in respect of which such opinion is being given as
such Holders may reasonably request. Such letter from the independent certified
public accountants shall additionally cover such other financial matters
(including information as to the period ending not more than five Business Days
prior to the date of such letter) with respect to the registration in respect of
which such letter is being given as the Holders of a majority of the Registrable
Securities being so registered may reasonably request;
(f) enter into customary agreements (including an underwriting
agreement in customary form) and take such other actions as are reasonably
required in order to expedite or facilitate the disposition of such Registrable
Securities; and
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(g) otherwise use its best efforts to comply with all applicable rules
and regulations of the Commission, and make available to its security holders,
as soon as reasonably practicable, but not later than 18 months after the
effective date of the Registration Statement, an earnings statement covering the
period of at least 12 months beginning with the first full month after the
effective date of such Registration Statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act.
It shall be a condition precedent to the obligation of Company to take any
action pursuant to this Agreement in respect of the securities which are to be
registered at the request of any Holder that such Holder shall furnish to
Company such information regarding the securities held by such Holder and the
intended method of disposition thereof as Company shall reasonably request and
as shall be required in connection with the action taken by Company.
5. Expenses. All reasonable expenses incurred in complying with this
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Agreement, including, without limitation, all registration and filing fees
(including all expenses incident to filing with the NASD), printing expenses,
fees and disbursements of counsel for Company, the reasonable fees and expenses
of counsel for the selling security holders (selected by those holding a
majority of the shares being registered), expenses of any special audits
incident to or required by any such registration and expenses of complying with
the securities or blue sky laws of any jurisdiction pursuant to Section 4(d),
shall be paid by Company, except that:
(a) all such expenses in connection with any amendment or supplement
to the Registration Statement or prospectus filed more than 180 days after the
effective date of such Registration Statement because any Holder has not
effected the disposition of the securities requested to be registered shall be
paid by such Holder; and
(b) Company shall not be liable for any fees, discounts or commissions
to any underwriter or any fees or disbursements of counsel for any underwriter
in respect of the securities sold by such Holder.
6. Indemnification and Contribution.
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(a) In the event of any registration of any Registrable Securities
under the Securities Act pursuant to this Agreement, Company shall indemnify and
hold harmless the holder of such Registrable Securities, such holder's directors
and officers, and each other person (including each underwriter) who
participated in the offering of such Registrable Securities and each other
person, if any, who controls such holder or such participating person within the
meaning of the Securities Act, against any losses, claims, damages or
liabilities, joint or several, to which such holder or any such director or
officer or participating person or controlling person may become subject under
the Securities Act or any other statute or at common law, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon (i) any alleged untrue statement of any material fact
contained, on the effective date thereof, in any Registration Statement under
which such securities were registered under the Securities Act, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereto, or (ii) any alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and shall reimburse
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such holder or such director, officer or participating person or controlling
person for any legal or any other expenses reasonably incurred by such holder or
such director, officer or participating person or controlling person in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that Company shall not be liable in any
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such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon any actual or alleged untrue statement or actual or
alleged omission made in such Registration Statement, preliminary prospectus,
prospectus or amendment or supplement in reliance upon and in conformity with
written information furnished to Company by such holder specifically for use
therein or (in the case of any registration pursuant to Section 2) so furnished
for such purposes by any underwriter. Such indemnity shall remain in full force
and effect regardless of any investigation made by or on behalf of such holder
or such director, officer or participating person or controlling person, and
shall survive the transfer of such securities by such holder.
(b) Each Holder, by acceptance hereof, agrees to indemnify and hold
harmless Company, its directors and officers and each other person, if any, who
controls Company within the meaning of the Securities Act against any losses,
claims, damages or liabilities, joint or several, to which Company or any such
director or officer or any such person may become subject under the Securities
Act or any other statute or at common law, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon information in writing provided to Company by such Holder specifically for
use in the following documents and contained, on the effective date thereof, in
any Registration Statement under which securities were registered under the
Securities Act at the request of such Holder, any preliminary prospectus or
final prospectus contained therein, or any amendment or supplement thereto.
Notwithstanding the provisions of this paragraph (b) or paragraph (c) below, no
Holder shall be required to indemnify any person pursuant to this Section 6 or
to contribute pursuant to paragraph (c) below in an amount in excess of the
amount of the aggregate net proceeds received by such Holder in connection with
any such registration under the Securities Act.
(c) If, as a matter of law, the indemnification provided for in this
Section 6 from the indemnifying party is unavailable to an indemnified party
hereunder in respect of any losses, claims, damages, liabilities or expenses
referred to therein, then the indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative fault of
the indemnifying party and indemnified parties in connection with the actions
which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified parties shall be determined by reference to,
among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact, has been made by, or relates to information supplied by,
such indemnifying party or indemnified parties, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such action. The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall be deemed to
include any legal or other fees or expenses reasonably incurred by such party in
connection with any investigation or proceeding.
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The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6(c) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
No Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
7. Certain Limitations on Registration Rights. Notwithstanding the
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other provisions of this Agreement:
(a) Company shall have the right to delay the filing or effectiveness
of a registration statement required pursuant to Section 2 hereof during one or
more periods aggregating not more than 60 days in any twelve month period in the
event that (i) Company would, in accordance with the advice of its counsel, be
required to disclose in the prospectus information not otherwise then required
by law to be publicly disclosed and (ii) in the judgment of Company's Board of
Directors, there is a reasonable likelihood that such disclosure, or any other
action to be taken in connection with the prospectus, would materially and
adversely affect any existing or prospective material business or financial
situation, transaction or negotiation, including, but not limited to any
financing, acquisition or corporate reorganization, or otherwise materially and
adversely affect Company.
8. Selection of Managing Underwriters. Subject to the obligations of
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the Company under agreements existing on the date hereof, the managing
underwriter or underwriters for any offering of Registrable Securities to be
registered pursuant to Section 2 shall be selected by the holders of a majority
of the shares being so registered and shall be reasonably acceptable to Company.
No person may participate in any underwritten offering hereunder unless such
person: (i) agrees to sell its Registrable Securities on the basis provided in
any underwriting arrangements approved by the Persons entitled hereunder to
approve such arrangements, and (ii) completes and executes powers of attorney,
indemnities, underwriting agreements and other documents required under the
terms of such underwriting arrangements.
9. Miscellaneous.
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(a) No Inconsistent Agreements. Company will not, without the written
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consent of Majority Holders, such consent not to be unreasonably withheld,
hereafter enter into any agreement with respect to its securities which is
inconsistent with the rights granted to the Holders in this Agreement. Except
as set forth in the Purchase Agreement, Company has not previously entered into
any agreement with respect to any of its securities granting any registration
rights to any person.
(b) Remedies. Each Holder, in addition to being entitled to exercise
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all rights granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement. Company agrees that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Agreement and hereby agrees
to waive the defense in any action for specific performance that a remedy at law
would be adequate. In any action or proceeding brought to enforce any provision
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of this Agreement or where any provision hereof is validly asserted as a
defense, the successful party shall be entitled to recover reasonable attorneys'
fees in addition to any other available remedy.
(c) Amendments and Waivers. Except as otherwise provided herein, the
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provisions of this Agreement may not be amended, modified or supplemented, and
waivers or consents to departure from the provisions hereof may not be given
unless Company has obtained the written consent of the Majority Holders and
Company has been obtained.
(d) Notice Generally. Whenever it is provided herein that any notice,
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demand, request, consent, approval, declaration or other communication shall or
may be given to or served upon any of the parties by another, or whenever any of
the parties desires to give or serve upon another any such communication with
respect to this Agreement, each such notice, demand, request, consent, approval,
declaration or other communication shall be in writing and either shall be
delivered in person with receipt acknowledged or by registered or certified
mail, return receipt requested, postage prepaid, or by telecopy and confirmed by
telecopy answerback addressed as follows:
(i) If to any Holder, at its last known address appearing on the
books of Company maintained for such purpose.
(ii) If to Company, at
UC Television Network Corp.
c/o Xxxxxx Xxxxx & Partners, L.P.
000 X. Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Avy X. Xxxxx
Telecopy Number: 000-000-0000
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration or other communication hereunder shall be deemed
to have been duly given or served on the date on which personally delivered,
with receipt acknowledged by overnight courier, with delivery acknowledged,
telecopied and confirmed by telecopy answerback, or three (3) Business Days
after the same shall have been deposited with the United States mail.
(e) Successors and Assigns. This Agreement shall inure to the benefit
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of and be binding upon the successors and assigns of each of the parties hereto
including any person to whom Registrable Securities are transferred.
(f) Headings. The headings in this Agreement are for convenience of
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reference only and shall not limit or otherwise affect the meaning hereof.
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(g) Governing Law; Jurisdiction. This Agreement shall be governed by,
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construed and enforced in accordance with the laws of the State of Delaware
without giving effect to the conflict of laws provisions thereof.
(h) Severability. Wherever possible, each provision of this Agreement
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shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
(i) Entire Agreement. This Agreement, together with the Purchase
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Agreement, represents the complete agreement and understanding of the parties
hereto in respect of the subject matter contained herein and therein. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
COMPANY:
Attest: UC TELEVISION NETWORK CORP.
By: /s/ Xxxx Xxxxx By: /s/ Xxxxx Xxxxx
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Xxxx Xxxxx Xxxxx Xxxxx
Secretary Chief Executive Officer and
Chairman of the Board
[Corporate Seal]
PURCHASER:
U-C HOLDINGS, L.L.C.
By: Xxxxxx Xxxxx & Partners, L.P.
Its: Managing Member
By: Xxxxxx Xxxxx & Partners, L.L.C.
Its: General Partner
By: /s/ Avy X. Xxxxx
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Avy X. Xxxxx
Its Manager
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